SALT - Sunday, 9 Iyar 5780 - May 3, 2020

  • Rav David Silverberg
            Parashat Emor begins with the prohibition against kohanim coming in contact with a human corpse, which would render them tamei (impure), except for the sake of burying an immediate family member.
            Tosafot in Masekhet Bava Metzia (114b) address the famous story told in Sefer Melakhim I (17) of the prophet Eliyahu, who resurrected the child of the widow who had fed him during the drought that struck the Land of Israel.  Different views exist as to Eliyahu’s pedigree, but according to one view, he was a kohen, and was thus forbidden to come in contact with a human corpse.  Tosafot explain that Eliyahu nevertheless was permitted to come in contact with the corpse of this child because Eliyahu was, in Tosafot’s words, certain that he would succeed in resuscitating him.  Since protecting human life overrides Torah, Eliyahu was permitted to expose himself to tum’at meit (the impurity contracted through contact with a human corpse) for the sake of restoring life to the child.
            Some noted the seeming implication of Tosafot’s comments that a kohen is not permitted to run the risk of becoming tamei even for the sake of saving a life, unless he is certain that he will succeed in his life-saving mission.  Thus, for example, it would appear that according to Tosafot, a kohen would not be allowed to help or treat a critically injured or ill patient if there is a chance that the patient would die under his care, and thus bring tum’a upon the kohen.  Needless to say, this is a very difficult conclusion to accept, given the well-established halakhic principle that Torah laws are suspended even for the possibility of protecting lives, and not only when the suspension of Torah law is certain to save human life.
            Rav Avraham Tzvi Eisenstadt (author of Pitchei Teshuva), in his Nachalat Tzevi commentary to the Shulchan Arukh (Y.D. 370:1), answers this question by noting that Eliyahu’s situation was, quite obviously, unique, as the patient had already died.  The child required miraculous resurrection, not merely medical treatment.  In order for such an attempt to justify the violation of Torah law, Eliyahu needed to be certain of its success.  Standard medical treatment, however, certainly overrides Torah law regardless of the chances that it will succeed and save the patient’s life.
            The halakhic authorities address the question of whether a kohen would be permitted to treat a critically ill patient who could die under his care if an equally competent non-kohen is available to perform the treatment.  Intuitively, we would naturally assume that the non-kohen should tend to the patient in such a case, since there is no necessity for the kohen to risk becoming tamei, and this is, indeed, the position of the Chatam Sofer (Y.D. 338).  Some, however, questioned this view in light of the Shulchan Arukh’s ruling (Y.D. 221:4) that if a person had taken a vow not to derive benefit from a certain individual, and then falls dangerously ill, that individual is permitted to provide treatment, even if another competent physician is available.  When it comes to medical treatment for a dangerously ill patient, it seems, we allow suspending Torah law even if the treatment could be provided permissibly by somebody else.  Therefore, we might assume that in the case of a kohen, too, he should not run the risk of violating the priestly code by treating a gravely ill patient if a non-kohen is available.
            Rav Shmuel Wosner (Sheivet Ha-levi, 3:164), however, distinguished between the two cases.  In the case of the patient who had vowed not to receive benefit from the physician, such a vow from the outset does not include benefit which is provided as a mitzva, and therefore, given the mitzva to save the life of somebody in danger, treating the patient does not suspend Torah law at all.  Hence, there is no preference to having somebody else treat the patient.  Generally, however, we would certainly require having somebody treat a patient permissibly rather than permit a physician to violate Torah law to provide treatment, assuming the former is no less competent.